Gregory v. Commonwealth

In Gregory v. Commonwealth, 28 Va. App. 393, 504 S.E.2d 886 (1998), a detective arrested Gregory, a convicted felon, on an outstanding warrant, and "found in Gregory's pocket a magazine loaded with ten rounds of .22 caliber ammunition." Id. at 397, 504 S.E.2d at 888. From appellant's trailer, the detective obtained "a .22 caliber Remington Model 522 semiautomatic rifle." Id. The magazine fit into the rifle. See id. Gregory contended on appeal that the evidence failed to prove the object recovered by the detective "was a 'firearm'" under the statute. See id. at 399, 504 S.E.2d at 889. The Court stated, "in determining whether an item is a 'firearm,' the Commonwealth must prove two discrete elements: (1) that the weapon is designed or intended to expel projectiles by the discharge or explosion of gunpowder; (2) that it is capable of doing so." Id. at 400, 504 S.E.2d at 889. Noting that "the best method for proving that an item is a firearm is presentation of direct forensic evidence of the nature and operability of the items" we held that "'circumstantial evidence is as competent and is entitled to as much weight as direct evidence'" to prove that the item is a firearm. Id. The Court affirmed the conviction and found that the item possessed by Gregory "was designed or intended to expel a projectile by means of a gunpowder explosion." Id. In affirming, we reviewed the following circumstantial evidence: Although the Commonwealth failed to explain how the rifle operated or to present ballistics evidence, Detective Mooney examined the weapon and testified that it was a .22 caliber, Remington Model 522 semi-automatic rifle. In his testimony, he referred to the weapon as a "firearm." The rifle and the loaded magazine were introduced as exhibits and were evidence from which the jury could infer that the rifle was designed or intended to expel projectiles by the power of explosion of gunpowder. Id.